The textbook account of how laws are made is for children. It presents the procedure as if it were governed by the Constitution. This is silly. That went out with high-button shoes.
The legal system that prevails today is administrative law: rule by government bureaucracies that cannot be fired. The story of how this legal revolution has re-shaped law in the West, threatening a new tyranny, appears in the 45-page introduction to Law and Revolution (1983), a great book by Harvard University’s legal historian Harold Berman. Those 45 pages are among the most important that I have ever read.
A recent study by the Cato Institute describes one section of Obamacare: the creation of the Independent Payment Advisory Board, or IPAB. This unelected board will set prices and payment systems for medicine under the plan.
Obamacare was created by the Patient Protection and Affordable Care Act (PPACA), which in turn creates IPAB. According to the Cato report, written by a lawyer,
When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.
But what if — this is 99% hypothetical — a majority in Congress decides that the IPAB payment schedule (taxes) is not a good idea? Well, tough bananas.
PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers. A heretofore unreported feature of PPACA dictates that if Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB “proposal.” By restricting lawmaking powers of future Congresses, PPACA thus attempts to amend the Constitution by statute.
IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.
This means that the Constitutional sovereignty is a dead concept, unless five people on the U.S. Supreme Court declare the law unconstitutional.
This will serve as a legal precedent. New laws will create similar boards.
Kiss the Constitution goodbye.
It was all so easy.
The 22-page report is here.